South Australian Consolidated Acts South Australian Consolidated Acts41—Winding up of incorporated associations
(1) Subject to the
succeeding provisions of this Part, an incorporated association may be wound
up—
(a) by
the Supreme Court; or
(b)
voluntarily; or
(c) on
the certificate of the Commission issued with the consent of the Minister.
(2) An
incorporated association is declared to be an applied Corporations legislation
matter for the purposes of Part 3 of the Corporations (Ancillary
Provisions) Act 2001 in relation to the provisions of Parts 5.4B, 5.5,
5.6, Divisions 1 and 2 of Part 5.7B, Division 3 of Part 5.9 and Part 5A.1 of
the Corporations Act 2001 of the Commonwealth, subject to the following
modifications:
(a) the
modifications necessary to give effect to this section and the succeeding
provisions of this Part; and
(b) such
other modifications (within the meaning of Part 3 of
Corporations (Ancillary Provisions) Act 2001 ) as may be prescribed by
the regulations.
(3) The grounds on
which an incorporated association may be wound up by the Supreme Court are as
follows:
(a) that
the association has by a special resolution resolved that it be wound up by
the Court; or
(b)
that—
(i)
the association has not commenced any activity or
function; and
(ii)
more than one year has elapsed since the date of its
incorporation; or
(c) that
the association is unable to pay its debts; or
(d) that
members of the committee of the association have acted in the affairs of the
association in their own interests rather than in the interests of the members
as a whole, or in any other manner whatsoever that appears to be unfair or
unjust to other members; or
(e) that
affairs of the association are being conducted in a manner that is oppressive
or unfairly prejudicial to, or unfairly discriminatory against, a member or
members or in a manner that is contrary to the interests of the members as a
whole; or
(f) that
an act or omission, or a proposed act or omission, by or on behalf of the
association was or would be oppressive or unfairly prejudicial to, or unfairly
discriminatory against, a member or members or was or would be contrary to the
interests of the members as a whole; or
(g) that
the Court is of the opinion that it is just and equitable that the association
be wound up.
(4) For the purposes
of subsection (3), if—
(a) a
creditor, by assignment or otherwise, to whom the association is indebted in a
sum exceeding $1 000 then due, has served on the association a demand,
signed by or on behalf of the creditor, requiring the association to pay the
sum so due and the association has, for three weeks after service of the
demand, failed to pay the sum or secure or compound for it to the reasonable
satisfaction of the creditor; or
(b)
execution or other process issued on a judgment, decree or order of any court
in favour of a creditor of the association is returned unsatisfied in whole or
in part; or
(c) the
Court, after taking into account any contingent and prospective liabilities of
the association, is satisfied that the association is unable to pay its debts,
the association is to be taken to be unable to pay its debts.
(5) Where an
application has been filed with the Court for the winding up of an
incorporated association on the ground that it is unable to pay its debts, the
association is not, without the permission of the Court, entitled to resolve
that it be wound up voluntarily.
(6) Subject to
subsection (5), an incorporated association may, by a special resolution,
resolve that it be wound up voluntarily.
(7) The grounds on
which the Commission may issue a certificate for the winding up of an
incorporated association are as follows:
(a) that
the association has contravened or failed to comply with a condition imposed
in relation to the association by the Commission or the Minister under this
Act;
(b) that
the incorporation of the association has been obtained by mistake or fraud;
(c) that
the association has, after notice by the Commission of any breach of this Act
or the rules of the association, failed, within the time referred to in the
notice, to remedy the breach;
(d) that
the association has not, within three months of notice being given by
the Commission under section 42, requested the Commission to transfer its
undertaking to another body corporate;
(e) that
the association is defunct.
(8) For the purposes
of this Act, the winding up of an incorporated association on the certificate
of the Commission commences on application to the Supreme Court by
the Commission and lodgment with the Court of a copy of the certificate and is
to proceed as if the association had by special resolution resolved that it be
wound up by the Court.
(9) The Supreme Court
may, on an order being made for the winding up of an incorporated association
by the Court (including a winding up on the certificate of the Commission), if
the Commission nominates a person who is not a registered company liquidator
for appointment as the liquidator of the association, appoint the person so
nominated as the liquidator of the association.
(10) The Commission
may, in relation to the voluntary winding up of an incorporated association,
approve the appointment of a person who is not a registered company liquidator
as the liquidator of the association.
(11) The reasonable
costs of a winding up are payable out of the property of the association.